“SURROGACY LAWS IN INDIA THROUGH THE LENS OF RIGHT TO

PRIVACY”

By: Sweta Mishra1

In the year 2002, the Hon’ble Supreme Court of India while deciding in the case of Baby
Majhi Yamanda vs. Union of India 2 held that commercial surrogacy will be having a legal
character in India and the judgment coming in the favour of commercial surrogacy, the boom
was witnessed in the commercial surrogacy in India and it became a part and parcel of the
India. Afterwards the legislature tried to bring laws in 2008, 2010, 2014 and so on but didn’t
succeed a single time. Finally the NDA Government brought a different set of rules in the
form of Surrogacy Regulation Bill, 2016 and this Surrogacy Bill as it denuded the
commercial surrogacy and allowed only altruistic surrogacy with number of conditions.
Within a quick span of time the legal experts came out all guns blazing against the same
terming it to be a violation of basic fundamental rights.

Now, it will be interesting to see that how the Right to Privacy judgment will affect the
surrogacy laws in India. Whether the Surrogacy Bill can stand in the Court of law if
challenged or it will fall for the Right to Privacy, still remains a question. This time the
epicentre of the debate is to analyze the ramifications of Right to Privacy judgement on the
future of surrogacy laws in India with remaining issues playing a second fiddle.

Keywords: [Right to Privacy, Surrogacy, Effect of the recent verdict on surrogacy laws]

1
2nd Year, B.B.A L.L.B, Symbiosis Law School, Hyderabad
2
537 A 2d 1227, 109 NJ 396 (NJ 1988)

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Surrogacy Laws in India through the Lens of Right to Privacy
INTRODUCTION:

Surrogacy is the practice by which a woman who is, or is to become, pregnant agrees
permanently to surrender the child born of that pregnancy to another person or couple, with
the intent that the other person or couple will be the parent or parents of the child. The
woman who bears the child is known as the surrogate mother and the person or people to
whom the child is surrendered are known as the commissioning or intended parent or parents.
This is another form of technology which makes a successful try for procreation of children
through the medical process instead of sexual means. This tries to stir the minds of the people
with variety of questions like “Should the men who think of adopting this method for
procreation of children be called as Fathers or mere Sperm Donors ?”; “Should the surrogate
mother be called as a victim ?”; “Are the agreements made for surrogacy legally binding or
should they be considered as unenforceable ?”. “Why should the motherhood be denied to
those who have complications and can’t deliver their own child under normal healthy
conditions?” “Is it because this process has not been legalised yet or is it due to the fear of
critics regarding the motherhood from the society as a whole?”

In the recent days, the concept of surrogacy has emerged widely and thus getting
acceptability from each and every person as it is another form of having a child who would
be somehow connected to the parents biologically which was not possible in the process of
adoption. The process of surrogacy can be carried on by the surrogate mother carrying a child
which would be her own genetic offspring. This process of conceiving a child can be done
through the sexual intercourse, by the woman inseminating herself or through the process of
artificial insemination approved medically. The sperm of the commissioning father is used in
both the cases. In this case, ART must be employed—an embryo, created in vitro, is
transferred to the surrogate mother’s uterus. This embryo will be created using eggs and
sperm of the commissioning couple, or eggs provided by an egg donor, fertilized by the
commissioning father.3 In most of the agreements related to surrogacy, the parents who
intend to have a child through this process, contribute the genetic material to the surrogate to
bear the child.4 These agreements relating to Surrogacy can be conducted in a formal manner
in the form of a contract or can be conducted informally on mere understanding of both the
parties.

3
Victoria Law Reform Commission, A.R.T. Surrogacy and Legal Parentage: A Comparative Legislative
Review, August (2004)
4
This type of surrogacy is known as Gestational Surrogacy or Full Surrogacy; Peter R. Brinsden, “Gestational
Surrogacy”, Human Reproduction Update, Volume 09, No.05, 483 (2003).

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Surrogacy Laws in India through the Lens of Right to Privacy
CONCEPT OF SURROGACY:

Surrogacy arrangements can be of two types:

1) Altruistic Surrogacy
2) Commercial Surrogacy

Altruistic Surrogacy:

In this arrangement of surrogacy, the surrogate mother doesn’t receive any gain may it be
financial or material from the intended parents.

Commercial Surrogacy:

In this form of arrangement, the surrogate mother who delivered the child receives a fee or
we can say a financial gain in return as she acted as a surrogate and if a broker is involved in
the same, then he/she also receives certain amount for the arrangement of the process of
surrogacy.

Thus, the advanced technology has made this process more convenient and easier for
both the parties. This has not only brought the ray of hope among the infertile married couple
but also provided an opportunity for all the socially infertile people to beget a child.
Surrogacy is being popular among all the people because of its wide use but at the same time
faces a great controversy regarding its legality because it involves legal issues as well as
human rights and this practice has been questioned on the grounds of social, moral and
ethical. This process has been criticized stating that it violates human rights by not respecting
the dignity of the surrogate mother which would lead to exploitation and slavery. However it
is argued by the proponents of the process of surrogacy that it is the basic human right of the
human beings to procreate children with the help of another and thus, have the right to benefit
from the advancement of the technology and science. At the same time every woman has the
right to reproductive autonomy which also includes the right to act as a surrogate mother for
another. Thus, any restriction on the process of surrogacy would violate the right of the
intended parents to have a child and at the same time violate the rights of the surrogate
mother.

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Surrogacy Laws in India through the Lens of Right to Privacy
 Various legal issues as well as controversies regarding the process of surrogacy can
be found in numerous cases in different countries. 5 In the case of “The Re C, (Ward
Surrogacy)”6; The Hon’ble Court discussed upon the legality of the surrogacy agreement
and held that the agreement was void on the grounds of public policy. This case was also
known as the “Baby Cotton Case”. However in the case of “Baby Majhi Yamanda vs.
Union of India”7; the court held that the surrogacy agreement was void itself but at the same
time awarded the custody of the surrogate child to the commissioning parents. In the case of
“Johnson v. Calvert”8 which argued about the exploitation of surrogate mother, the Court
rejected this particular argument and handed over the custody of the surrogate child in the
hands of the commissioning parents. Therefore, we can see that the approach towards the
surrogacy differs from countries to countries depending upon their economical, social and
political views which result in different laws regarding surrogacy all over the world. Due to
the varying approach towards surrogacy, couples who wish to beget a child through the mode
of surrogacy generally travel across countries to avail this service and thus having no legal
issues on this fact and no restrictions on this process of procreation.

India is developing as the destination for such surrogacy practices and the Law
Commission of India states that the usual fee that is being charged for surrogacy
arrangements is $25,000 to $30,000 in India which is 1/3 rd of the price charged for the same
process in USA9. Thus, this becomes one of the strongest incentives for the foreigners to visit
India as it involves lower costs as compared to other countries.

LAWS RELATED TO SURROGACY PREVAILING IN INDIA:

India is on the verge of witnessing the change as the bill regarding Surrogacy has been
approved by the Government. India was regulated on the following laws till this period:

1) Indian Council of Medical Research Guidelines, 2006

5
Jaycee B. v. The Superior Court of Orange County, 42 Cal. App. 4th 720; Soos v. Superior Court of the State of
Arizona, 182 Ariz. 470 (1994); K.M v. E.G, 117 P.3d 673 (Cal. 2005) (The Hon’ble Supreme Court of
California)
6
1985 FLR 846
7
A.2d 109 N.J.396 (1988)
8
(1993) 851 P 2d 776 (Cal)
9
Law Commission of India, - “Need for Legislation to Regulate Assisted Reproductive Technology Clinics as
well as Rights and Obligations of Parties to a Surrogacy”, Report No. 228, August 2009, at p.11

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Surrogacy Laws in India through the Lens of Right to Privacy
 2) Law Commission Report by Government of India Report No. 228, Need for
Legislation to Regulate ART Clinics as well as Rights & Obligations of Parties to
Surrogacy, 2009
3) Assisted Reproductive Technology (Regulation) Bill, 2014.
4) Home Ministry Regulations on Surrogacy to FRRO – VISA, 2015
5) Surrogacy (Regulation) Bill, 2016

The Indian Council for Medical Research (ICMR) published the Guidelines for
Accreditation, Supervision and Regulation of ART Clinics in India (hereafter called ‘The
Guidelines’) for regulating the conduct of ART clinics offering Surrogacy in India, which
until the ART Bill is passed serves as the sole regulator of ART in India. The ICMR
prescribes informed consent which after duly counselling the couple/ oocyte/ semen donor,
an informed and written consent should be taken from both the spouses as well as the donor,
as the case may be. They should be explained the various risk factors associated with the
procedures in simple language and the words that they can understand and thus, information
should be provided to the couples on seeking the treatment. They should be explained
regarding the desirable practices as well the about the prohibited scenarios during the
procreation of child.

Assisted Reproductive Technology (Regulation) Bill, 2014:

The bill was drafted by the Drafting Committee which was appointed by the Ministry of
Health & Family Welfare, Government of India. This bill among other things primarily
legalizes commercial surrogacy in the form of payment as “monetary compensation” to the
surrogate mother by intending couple under surrogacy contract enforceable in law which was
cited in the ART Bill, 2010.10

The New Bill provides procedures for registrations and complaints and to supervise the
conduct of ART clinic and ensure compliance with mandates of ART Bill and State
Registration Authority which shall grant a certificate of Registration to the ART clinic for
their functioning.

10
Section 34 (3) of ART Bill, 2010.

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Surrogacy Laws in India through the Lens of Right to Privacy
Law Commission Report No. 228:

Law Commission of India presented a report titled as “Need For Legislation to ART Clinic as
well as Rights and obligations of Parties to a Surrogacy” in the year 2009. It focuses on the
rights and obligations of parties to surrogacy and thus, the report recommended for legalizing
altruistic or non commercial surrogacy arrangements in India in order to protect surrogate
mother from exploitation as opposed to ART Bill.

Surrogacy (Regulation) Bill, 2016:

This bill aims to ban commercial surrogacy and focuses on prohibiting the surrogate mother
from be exploited as a service.

RIGHT TO PRIVACY WITH RELATION TO SURROGACY:

Right to Privacy denotes a specific aspect of liberty and provides freedom to the
public. In other words, there would be no governmental interference with decision making
process regarding families, procreation of children and other related private matters. 11 The
Supreme Court has held that all the individuals have a fundamental and a constitutional right
to the right to privacy and thus has invalidated certain state laws which obstructed
autonomous decisions relating to marriage12, education13, procreation of children.

It would be interesting enough to talk about the role of Right to Privacy in the
context of Surrogacy. This argument would generally assert “Whether a woman wants to
bear her own child or she wants to have her child by fulfilling the terms and conditions of the
contract and thus state wouldn’t have any interference with this choice of hers to seek the
process of artificial insemination?” Thus, the process of surrogacy is entirely possible only
when the surrogate mother is ready to deliver the child with her own capacity, willingness
and liberty. The process of procreation of children through the process of surrogacy always
depends upon both the parties consent and it is always their own choice of whether to bear a
child through this process or whether to be a surrogate or not.

“The Right to Reproductive Choices” has been declared as a part of Article 21 of the
Constitution of India.14 The recent verdict on K.S. Puttaswamy v. Union of India 15, Chief
Justice J.S. Khehar ruled that “Right to Privacy is an intrinsic part of Right to Life and
11
Thornburgh v. American College of Obstetricians, 476 U.S. 747, 772 (1986) which held that Constitution
embodies promise that certain private spheres of individual liberty will be kept beyond reach of government
12
Loving v. Virginia, 388 U.S. I, 12 (1966) where it was held that state statutory scheme forbidding interracial
marriages violates due process because freedom to marry is fundamental.
13
Meyer v. Nebraska, 262 U.S. 390, 399 (1923); It was held that statute forbidding teaching of any foreign
language interferes with right of parents and teacher to choose how to educate children.
14
B.K. Parthasarthi v. Government of Andhra Pradesh, AIR 2000 AP 156
15
WRIT PETITION (CIVIL) NO.494 OF 2012

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Surrogacy Laws in India through the Lens of Right to Privacy
Personal Liberty under Article 21 and entire Part III of the Constitution”. Every citizen has
the right to safeguard his privacy which consists of his family, marriage, procreation, child
bearing and motherhood. In the Case of “B.K. Parthasarthi v. Government of Andhra
Pradesh”; the reproductive rights of a woman were considered as a fundamental right and
thus was held that “Right to Reproductive Autonomy” comes under the facet of “Right to
Privacy”.

Therefore, Surrogacy as being a part of “The Right to Reproductive Choices”

should be held constitutional and valid and should come under the ambit of Right to Privacy
as at the end it is the primary concern of the intending parents and the surrogate mother of
bearing a child which falls under the umbrella of Right to Privacy. Right to bear a child and
to procreate is a private matter which is well protected under Article 21 of the Constitution of
India which could be seen in the case of “R. Rajagopal v. State of Tamil Nadu”16 and now
with the recent verdict on Right to Privacy in the case of K.S Puttaswamy, everything has
been crystal clear.

CONCLUSION:

There always remain a right with each and every individual to take their own
decision regarding the method to be followed for the process of reproduction. Surrogacy is
considered to be one of those type or modes of reproduction. Each and every woman has her
own constitutional right as well as the privacy rights regarding abortion or bearing a child.
The 228th Report given by the Law Commission of India also observed that the Right to
Privacy of the donor as well as the surrogate mother should be protected. The Surrogacy
(Regulatory) Bill, 2016 in the manner it is at the present will find it hard to stand a chance
and fall being violative of right to privacy. Moreover in the personal matters the state cannot
suggest the spouse regarding the method to which she should adhere to for the purpose of
having a child. Right now it seems that the vacuum in the surrogacy laws will continue and
like other bills, this bill will also not able to see the light of the day. The government must
take into consideration all the aspects before laying forward anything with regards to
surrogacy

The legality of the process of Surrogacy has always been a question in the minds of
people and whether it can be considered under the Right to Privacy which includes
Procreation of children and reproductive choices. To answer such questions and face such
controversies, issues and situations, there should be a proper as well as an effective regulatory
body or framework which would be capable of governing, defining and regulating the
relationships and the relative matters out of the process or transaction of Surrogacy. By
taking the decisions of the above mentioned cases and the recent verdict on K.S Puttaswamy
v. Union of India, it can be inferred that the Right to Privacy can be extended to that of
surrogacy under Article 21 and it can be in line with the Supreme Court’s tradition of
protecting the individual’s liberty and freedom. Instead of imposing these safeguards on
banning the commercial surrogacy, the Central Government should come up and maintain a
proper medical regulatory framework which can emerge with proper procedures and
16
1995 AIR 264

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Surrogacy Laws in India through the Lens of Right to Privacy
guidelines so that commercial surrogacy can be introduced as well as maintained and
regularised and thus making India to be developed as a destination for the same.

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Surrogacy Laws in India through the Lens of Right to Privacy